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United States v. Vizcarra

July 31, 2010



Movant has filed a motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. Therein, movant claims that he received ineffective assistance from his trial counsel. In opposing the motion for relief, respondent argues that movant's claims are without merit. Movant has filed a traverse.

Having considered all the papers filed by the parties and the record in this action, for the reasons set forth below, the court will recommend that the motion be denied.


On January 25, 2002, a criminal complaint was filed against movant, alleging that he imported and conspired to import controlled substances into the United States and that he laundered money to promote and carry on the importation of those controlled substances in violation of 21 U.S.C. §§ 952, 963 and 18 U.S.C. §§ 1956(a)(1)(A)(I), 1956(a)(2)(A). (Doc. No. 1.) Movant's initial appearance before the court took place that same day, counsel was appointed to represent him and a preliminary hearing was scheduled for February 8, 2002. (Doc. No. 2.) On February 7, 2002, a federal grand jury for the Eastern District of California indicted movant. (Doc. No. 10.) On February 8, 2002, movant was arraigned on that indictment. (Doc. No. 11.)

On May 2, 2002, movant was indicted on a superseding indictment charging him with two counts of money laundering, conspiring to distribute heroin and methamphetamine, and conspiring to launder money.*fn1 (Doc. No. 19.) Movant was arraigned on the superseding indictment on May 21, 2002. (Doc. No. 20.) On September 3, 2002, at movant's request, his appointed counsel was relieved and new counsel was appointed. (Doc. No. 24.)

Movant's trial commenced on October 8, 2003. (Doc. No. 48.) On October 23, 2003, a jury found him guilty on all counts. (Doc. No. 60.) On February 24, 2004, movant appeared before the court and was sentenced to the custody of the U.S. Bureau of Prisons for a 188-month term of imprisonment. (Doc. No. 83.)

Movant filed an appeal of his judgment of conviction in the Ninth Circuit Court of Appeals on March 3, 2004. (Doc. No. 89.) On June 10, 2005, that court affirmed the judgment, but remanded the matter to this court for sentencing proceedings consistent with the decision in United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), and to consider whether movant's sentence would have been materially different in light of the United States Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). (Doc. No. 124.) On January 10, 2006, the assigned district judge affirmed the sentence originally imposed and ruled that the previously issued judgment would remain in effect. (Doc. No. 141.) Petitioner again appealed. On December 11, 2006, the Ninth Circuit Court of Appeals filed a memorandum decision affirming the district court's judgment and sentence. (Doc. No. 158.)

On May 8, 2008, movant filed his § 2255 motion with this court to vacate, set aside, or correct his sentence on his own behalf. (Doc. No. 164 (hereinafter "Motion").) Respondent filed a response opposing the motion on July 25, 2008. (Doc. No. 172 (hereinafter "Response").) Movant filed a traverse on August 28, 2008. (Doc. No. 176*fn2 (herein after "Reply").)


On March 3, 1999, agents for the United States Customs Service arrested Jack Perkett, Frank Sandoval, and Travis Phillips at the Calexico California Port of Entry for attempting to smuggle approximately 2.8 pounds of heroin and 9.4 pounds of methamphetamine across the border into the United States in a 1989 Jeep Wagoneer.*fn3 (Reporter's Transcript ("RT") at 53-54, 77-83.) After interviewing Travis Phillips and Jack Perkett, agents learned that the group had intended to transport the drugs to Stockton, California. (Id. at 81-82.)

After the arrests, IRS agents identified approximately 320 transfers of money, using either Western Union or MoneyGram, totaling approximately $612,000 from Stockton to a small group of individuals in Mexico. (Id. at 713-15.)

At movant's trial, Frank Sandoval testified that on March 2, 1999, movant asked him to transport a vehicle to Mexico. (Id. at 195-96.) Movant then picked Sandoval up in the Wagoneer and the two traveled to Perkett's house, where Perkett and Phillips were waiting. (Id. at 197-99.) Sandoval, Perkett and Phillips then drove the Wagoneer to Mexico. (Id. at 199.) When the group attempted to cross the border from Mexico back into the United States, Sandoval knew there were drugs in the vehicle. (Id. at 203.) Sandoval had transported drugs across the border at movant's request on three or four prior occasions. (Id. at 205.) Sandoval also sent money to Mexico on behalf of movant approximately ten to fifteen times. (Id. at 213.)

Phillips testified at trial that he knew movant "through some minor drug deals in Stockton." (Id. at 120.) Phillips knew that he was going to be part of a group that drove the Wagoneer to Mexico to transport drugs back to the United States, but never spoke with movant because Phillips did not speak Spanish. (Id. at 122-23.)

Christina Cloward testified at trial that she was movant's girlfriend and that she sent money to Mexico at movant's request on approximately twenty occasions. (Id. at 385, 410.) Cloward also testified that she drove a vehicle from Stockton to Mexico on behalf of movant that she believed had $25,000 in cash hidden inside. (Id. at 420-21.)


Movant alleges that he received ineffective assistance from his trial counsel. In this regard, he argues that his counsel "failed to inform him of all possible plea options," specifically failing to advise movant about the benefits of an "open plea." (Motion at 17.*fn4

Movant asserts that his trial counsel was also ineffective because movant's sentence was based "on a multi-object conspiracy" where the jury delivered a general verdict that did not specify which offense was the target of the conspiracy, and his counsel failed to object to his sentence on that basis. (Id. at 19.) Finally, movant argues that his trial counsel was ineffective because he failed to object to the introduction of prior testimony by Perkett, after Pertkett refused to testify on behalf of the government. (Id. at 25-26.)


A federal prisoner making a collateral attack against the validity of his or her conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 filed in the court which imposed sentence. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Under § 2255, the federal sentencing court is to grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution of laws of the United States. United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999).

In reviewing a motion brought pursuant to § 2255, a federal court shall hold an evidentiary hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S. C. § 2255. See also United States v. ZunoArce, 339 F.3d 886, 889 (9th Cir. 2003). However, to be entitled to an evidentiary hearing the movant must provide specific factual allegations which, if true, state a claim on which relief under § 2255 could be granted. United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003); United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984).


As noted above, all of movant's claims involve allegations that he recieved ineffective assistance of counsel. Below, the court will address the legal standards governing such claims before turning to each of movant's specific claims.

I. Legal Standards Governing Ineffective Assistance of Counsel Claims

The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970)); United States v. Span, 75 F.3d 1383, 1386 (9th Cir. 1996). Thus, under the Sixth Amendment a defendant is entitled to "a reasonably competent attorney, whose advice is within the range of competence demanded of attorneys in criminal cases." United States v. Cronic, 466 U.S. 648, 655 (1984) (internal quotations omitted). The purpose of the effective assistance guarantee is "to ensure that criminal defendants receive a fair trial." Strickland, 466 U.S. at 689. Toward that end, the Sixth Amendment requires that an accused be ...

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