United States District Court, S.D. California
ORDER DENYING AS MOOT MOTION TO PROCEED IN FORMA PAUPERIS; AND ORDER DENYING MOTION TO VACATE PURSUANT TO 28 U.S.C. § 2255
LARRY ALAN BURNS, District Judge.
Petitioner Martin Sandoval was tried and convicted by a jury of conspiracy to distribute marijuana, and possession of marijuana with intent to distribute. He took an appeal, which was unsuccessful. See United States v. Sandoval, 465 Fed.Appx. 653 (9th Cir. 2012). The Ninth Circuit's mandate was effective January 30, 2012. In September of 2013, he submitted a motion to vacate, pursuant to 28 U.S.C. § 2255, which was rejected for filing because it appeared to be untimely and because his motion raised issues the Ninth Circuit had already decided adversely to him.
Sandoval then submitted a new § 2255 motion,  pointing out that he filed a certiorari petition, which was denied on October 1, 2012. He cites Clay v. United States, 537 U.S. 522, 532 n.4 (2003). The Court accepts that "if a prisoner petitions for certiorari, the contested conviction becomes final when the Supreme Court either denies the writ or issues a decision on the merits." Id. (quoting United States v. Hicks, 283 F.3d 380, 387 (D.C. Cir. 2002).
Along with his § 2255 motion, Sandoval filed a motion to proceed in forma pauperis. No filing fee is required for such a motion, however. See United States v. Thomas, 713 F.3d 165, 173 (3d Cir. 2013). The motion is DENIED AS MOOT.
Sandoval raises fifteen principal issues: twelve in support of his argument that he received ineffective assistance of trial counsel, one that his appellate counsel's failure to raise a claim based on prosecutorial misconduct amounted to ineffective assistance, and one that his appellate counsel's decision to petition for certiorari rather than file a request for rehearing or rehearing en banc before the Ninth Circuit amounted to ineffective assistance of counsel
Under Strickland v. Washington, 466 U.S. 668, 687 (1984), Sandoval bears the burden of showing that his counsel's performance was deficient and that the deficiency prejudiced him. His counsel's actions are entitled to a "strong presumption" of reasonableness, and they are only considered deficient if they were objectively unreasonable. See United States v. Sanchez-Cervantes, 282 F.3d 664, 671-72 (9th Cir. 2002).
After his own conviction, Sandoval was granted immunity and compelled to testify in his codefendant's trial. But because the Court determined that he perjured himself during that testimony, his sentence was higher than it would otherwise have been. The facts and arguments are set forth in the Ninth Circuit's decision. See Sandoval, 465 Fed.Appx. 653. None of Sandoval's claims has any merit, and in fact most of them are foreclosed by the Ninth Circuit's decision.
Ineffective Assistance of Trial Counsel
Sandoval's thirteen arguments (Docket no. 149-1 at 11-13 (Sandoval's Mem. in Supp. of Mot. to Vacate at pages 9-11)) fall into four general groups. Sandoval first argues he was not properly advised about the consequences of a guilty plea, and was never told he might be deported as a result. Second, he argues that his counsel made errors in connection with an unrecorded interview during which he confessed. Third, he objects that he had a right not to testify at his co-defendant's trial and his counsel failed to advise him of this. And fourth, he objects that his counsel should have objected to or offered various other pieces of evidence.
Sandoval's first group of arguments fails because he did not plead guilty; he went to trial and was convicted. In addition, he declares under oath that he was warned both by his counsel and in open court that he was deportable if convicted. (Docket no. 149 (Sandoval Affidavit) at 16, §§ VI and VIII.)
His second group of arguments is essentially that there was something improper about a DEA policy of not recording voluntary interviews, and that his confession during that interview was involuntary. There is, however, insufficient evidence to support suppression. The available evidence shows that Sandoval voluntarily came in for an interview (Trial Tr., 152:21-159:7 (testimony regarding how interview was conducted)) and Sandoval points to no evidence that anything improper was done there that would have rendered his confession involuntary. Furthermore, the evidence he now wishes his attorney had introduced his was his own testimony, which did not essentially contradict prosecution testimony. And of course, putting him on the stand would have been risky. He also claims his own confession was hearsay, which is wrong; admissions of a party opponent are by definition not hearsay. Fed.R.Evid. 801(d)(2).
It is also worth noting that Sandoval denied and continues to deny that he ever confessed. (Mot. at 3-4.) Even accepting Sandoval's representation that he told his counsel agents forced him to confess by threatening him and his family, pursuing this theory of defense would have been a disaster. It was inconsistent with the theory that Sandoval never confessed, and the only evidence to support it would have been Sandoval's only testimony. Calling him to the stand to offer this new testimony would have been, at the least, very questionable strategy. And, if Sandoval's ...