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United States of America v. Fernando Lopez-Cuevas

October 20, 2011

UNITED STATES OF AMERICA, RESPONDENT,
v.
FERNANDO LOPEZ-CUEVAS, MOVANT.



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

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. Doc. 176. Movant challenges his 2004 conviction for conspiracy to posses with intent to distribute and possession with intent to distribute, methamphetamine. He was sentenced to 292 months. Respondent filed an opposition but movant, despite requesting an extension, did not file a reply.*fn1 The motion raises twenty-four claims of ineffective assistance of counsel concerning three separate attorneys who represented movant at different stages of the proceedings. Many of the claims asserted are inconsistent with each other. 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.

The facts of this case involve a "buy-bust" operation in which movant and his co-defendant agreed to sell an undercover officer six pounds of methamphetamine. Co-defendant Mr. Ontiveras brokered the deal; movant drove the load car.

On September 3, 2002, a confidential informant for the Sacramento County Sheriff's Department finalized arrangements with Mr. Ontiveras for Mr. Ontiveras to sell six pounds of methamphetamine, for $4,000 per pound, to the informant's "partner," actually the undercover detective ("UC"). Reporter's Transcript (RT) at 113-14, 256. Mr. Ontiveras was to make $500 per pound on the deal. RT at 257. Mr. Ontiveras told the informant that the supplier would be coming from out of the area to deliver the methamphetamine. RT at 119, 257.

The UC directed the informant, who was with Mr. Ontiveras at the time he informed the UC of the arrangements that had been made, to go with Mr. Ontiveras to a specific location to meet him. RT at 116. The UC told the informant that the plan was for the load car to meet up with the informant's car. RT at 115, 119. The load car would then follow the informant's car to where the UC purportedly lived for payment to occur. Id.

The UC arranged for police surveillance of the meet location. RT at 116. As surveillance units watched, the informant and Mr. Ontiveras met with movant who was driving a purplish Honda. RT at 119, 127, 258. They met at 24th and Florin. RT at 257. Mr. Ontiveras introduced movant as his cousin to the informant, and Mr. Ontiveras indicated that movant had brought the methamphetamine. RT at 267. Movant asked Mr. Ontiveras if he was ready with the money, and Mr. Ontiveras indicated that he was ready, too. RT at 260.

The UC then called the informant and told him to relay to Mr. Ontiveras and movant that they should drive to another location, 21st and Florin, to meet with him and consummate the transaction. RT at 128, 261. Movant was driving right behind Mr. Ontiveras.

RT at 129.

Eventually both cars were stopped. RT at 130-31. As the police pulled over the informant and Mr. Ontiveras, Mr. Ontiveras said that they were "screwed." RT at 261.

A search of movant's Honda revealed six pounds of methamphetamine hidden beneath the spare tire lid in the trunk. RT at 172, 185, 187. The methamphetamine was found with Bounce laundry sheets, in an apparent attempt to mask the odor of the drugs. RT at 170-71. Also in movant's car was paperwork bearing his name, including a receipt for an auto part purchased by movant on May 21, 2002 and a notice to appear for a traffic violation. RT at 210-16.

The passenger of movant's car, Alejandro Hurtado, made the following statement to the police at the scene, which was read to the jury. In that statement, Mr. Hurtado said the following:

[Movant] told me that we were [driving to Sacramento together] to meet a friend. He did not say anything about drugs. The drugs you found in the car are not mine, they must belong to [movant].... When we got to Sacramento, we were doing a lot of waiting around. I became suspicious, thinking that he was up to something. I kept asking [movant] what we were doing, but he just kept telling me that we were waiting for a friend. [Movant] talked on his cell phone twice while we were here. I did not hear his whole conversation, but he was saying things like, wait a little while, and I'll be right there. As we got pulled over, [movant] got very nervous, and I knew at that time that he had something.

RT at 220-21. The parties also agreed that the following statement by movant, made by signed declaration on January 15, 2003, be read into the record:

On September 3, 2002, I picked up my friend Alejandro Hurtado in Vallejo to accompany me to Sacramento. As far as I know, Alejandro Hurtado had no knowledge of the methamphetamine that was found in the vehicle in which we were arrested on September 3, 2002.

RT 221-22. The jury never saw this declaration in written form. RT at 568-69.*fn2

Movant took the stand and testified in his own behalf. He was cross-examined extensively by the prosecution. RT at 409-37. He testified that he took the car from a tow yard to sell it in Sacramento, although he didn't have the title with him and didn't remove his personal effects from the car. Id. He testified that, at the tow yard, an unknown person took the car for 40 minutes before giving it back to him, but movant didn't think to ask who the man was or what he was doing. Id. Movant was selling the car for his sister but had no idea how much money he was supposed to get for it. Id. He was going to give the money to another cousin of his in Sacramento, from whom he expected a ride back to the Bay Area, although he hadn't even contacted this cousin to ask for a ride. Id. He didn't mention to the police at the time of his arrest anything about the mystery man who took the car and washed it.

The government did not mention either Mr. Hurtado's statement or the movant's declaration about Mr. Hurtado in closing argument or rebuttal.

As it turned out, although petitioner was eligible for a 20 year mandatory minimum to life imprisonment sentence as he had been charged with trafficking in a methamphetamine mixture in excess of 500 grams and had a prior conviction*fn3 , for whatever reason, the jury was not provided with the special verdict form which would have proven that amount of methamphetamine mixture. See RT (May 14, 2004) at 1-2. Thus, petitioner's maximum possible sentence was 30 years (20 years plus 10 for a prior conviction). See 21 U.S.C. § 841(b)(1)(C). Thus, many of petitioner's allegations herein that he was unaware that he was exposed to a 20 year mandatory minimum are inconsequential.

At sentencing, the trial court also found that movant committed perjury and obstructed justice when he testified at trial.

III. Discussion

Legal Standard

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. 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. 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. "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).

Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 693. 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. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.

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)).

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).

Hearing to Appoint New Counsel

On the second day of trial, February 11, 2004, an in camera hearing was held with the trial court, movant and movant's counsel regarding movant's request for new counsel to be appointed. The prosecution and the jury were not present. In that hearing, movant and trial counsel, Gilbert Roque, spoke about several issues that are pertinent to many of movant's claims below and refute many of movant's assertions.*fn4 It should also be noted that movant failed to raise many of the issues at the hearing that he now raises in the instant motion. Set forth below are several excerpts from that hearing:

Movant: Today, when I got here, and yesterday and today I told [Roque] that

I was thinking that I would testify. And he told me, no, it would be better not to, that it would be better not to testify. And he explained to me about other clients that he's had who sometimes get confused or they get nervous. [. . .]

Roque: The problem with raising the issue of character, Judge, as the Court knows, is that it opens up a Pandora's Box with regard to the prosecution; they can attack character by bringing in [movant's] prior record. And [movant] does have a prior record, of which the Court knows since a notice of the prior was filed in this case. Therefore, I had to talk to [movant] about using Mr. Edwards [the character witness] with the knowledge that his record would come out. And if his record was going to come out, and if he didn't mind that record coming out, then I discussed with him the fact of his testimony.

Previously I had indicated to him that generally, as a rule, I don't necessarily like my clients to take the stand unless they're prepared properly to be cross-examined, and are able to cross-examine, because my experience has been that many clients, if they choose to testify, could get tripped up based on their lack of experience in the courtroom. [. . .]

And then I went through the options, that if he did testify then his record would come out, and at that point then we could have Mr. Edwards - - Mr. Edwards is the employer, Judge -- have Mr. Edwards testify and he can talk about his character, and there wouldn't be as much prejudice if Mr. Edwards understood that [movant] had the record and still felt that he was of good character. If [movant] chose not to testify, then his record wouldn't come in and he had to decide whether he wanted me to call Mr. Edwards anyway, knowing that if Mr. Edwards testified his record would come in. So, that's with regard to that point. [. . .]

Roque: [Movant] asked me to try to get a deal from the prosecutor. I did try to get a deal, and conveyed that deal to the prosecutor. The prosecutor gave me a written rejection of [movant's] deal to the prosecution. In essence, it was our offer, because our offer was lower than what the guidelines would be. [Movant] said, well, I'm willing to accept this amount. I told him, well, I don't know how we're going to get that. But I did talk to the prosecutor, and I have written documentation, which I showed [movant] that I had where [the prosecution] said I understand that this is what you're asking, we're rejecting it, and let's move forward. And if your client wants to do other things, we're willing to listen to other things, but as far as your offer to me, we reject that. So, the offer that - - or the deal that [movant] is referring to was, in fact, conveyed to the prosecution, and it was rejected. [. . .] [Movant] is very, very unhappy because I was not able to get the 10-year deal that he was eventually willing to accept, and now he's looking at 20 years minimum mandatory because of the prior. And he's seen the case unfold, and I believe that's stressing him out, and I understand that.

RT, Sealed In Camera Hearing at 17-23.

Claim A*fn5

Prior to being prosecuted in federal court, movant was arraigned in state court and appointed counsel. The state court eventually dismissed the charges against movant due to the federal complaint and possible indictment. Movant claims that his appointed counsel in state court was ineffective for not taking the necessary steps to keep movant's case in the state court and away from federal prosecution.

Movant argues that state appointed counsel did not discuss any of movant's options to keep the case out of federal court. However, movant does elucidate what were the 'options'. Movant argues that state counsel failed to speak with the district attorney and persuade the district attorney to keep the case in state court. Though, it is not clear if the district attorney had any authority to stop the federal prosecution. Movant maintains that had state counsel informed him of the possibility of a federal prosecution movant would have made a better decision regarding cooperating. Yet, movant concedes that he is unaware if any plea offer was actually made to his state counsel.

With respect to this claim, movant merely speculates regarding possible scenarios none of which will lead to relief. See Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) ("'[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief'") (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)).

More importantly, movant's claim does not appear to be cognizable under a ยง 2255 action, as movant challenges his counsel's conduct in state court that resulted in the state case being dismissed. Movant does not cite any authority that would entitle him to relief regarding the actions of his state counsel prior to the federal case. Regardless, movant's claim is based on pure speculation and is meritless as there is no indication ...


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