UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
April 17, 2012
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge
ORDER DENYING § 2255 MOTION
Petitioner filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence. The Government was ordered to file a response. Petitioner did not file a Traverse. Having reviewed the answer and the records in this case, the Court finds no evidentiary hearing is necessary and denies the motion.
Petitioner, a citizen of Mexico, was tried by a jury and found guilty of six counts of alien smuggling in violation of 18 U.S.C. § 1324(a)(2)(B), and sentenced to six concurrent 60-month prison sentences. The judgment was affirmed on appeal with the court of appeals independently reviewing the record and finding "no arguable grounds for relief." Petitioner now contends that his attorney provided ineffective assistance and that his sentence should have been less severe.
The first contention is that his attorney's investigation "was not strong enough to represent the defendant." This contention is too general. Petitioner offers no supporting facts and no supporting evidence. At trial, defense counsel cross-examined government witnesses and put Petitioner on the witness stand to tell his side. Petitioner testified that he did not know that there were three aliens hidden under the minivan he was driving into the United States. He testified that he had simply borrowed the minivan the morning of the arrest and that he had borrowed the vehicle from a neighbor. He testified that the other man had lived in his neighborhood for 26 years and that they had talked of borrowing a car the evening before over drinks and gambling. He testified that he did not know that the neighbor was part of an alien smuggling operation. And he explained to the jury that he simply needed a car to cross the border to go to a Wal-Mart store to buy an Xbox for his brother. In short, Petitioner's attorney put on an adequate defense. The first contention is without merit.
He next contends that there were important phone calls made from his cell phone that his attorney should have mentioned in the trial. Again, Petitioner does not offer specifics about the calls or their importance. Moreover, at trial, evidence was introduced that Petitioner was called at 6:00 am and told the car was ready. There was also evidence that Petitioner called his neighbor when he noticed that the gasoline gauge showed the tank was empty (the tank had been disconnected and removed to make room for the hidden aliens). Petitioner testified that he believed the explanation that the gauge simply did not work. Petitioner does not describe any other calls or how they would have helped his case. The second contention is without merit.
The next contention is also conclusory and unsupported by any details or evidence. Petitioner simply asserts that his lawyer was not able to "get enough evidence" and that he should have mentioned that the minivan was not owned by the Petitioner. Yet, a review of the trial transcript once again reveals that Petitioner himself testified to the fact that he did not own the minivan. The third contention is without merit.
Petitioner received effective assistance of counsel. The jury simply did not believe Petitioner's story. The § 2255 motion fails to satisfy the test ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668 (1984).
Petitioner also takes issue with the sentence received. He argues that "even though the witnesses was (sic) on behalf of Mr. Caucedo Virgen, the court still sentenced the defendant to 60 months." Reviewing the case, it is clear that the 60-month sentence was a statutorily imposed minimum mandatory sentence. Therefore, this contention is also without merit.
Petitioner's motion is denied. The Court declines to issue a certificate of appealability.
IT IS SO ORDERED.
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