United States District Court, S.D. California
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255
LARRY ALAN BURNS, District Judge.
Defendant Fernando Alarid was convicted by a jury of conspiracy to import, conspiracy to distribute, and possession with intent to distribute, over 1, 000 kilograms of marijuana. Evidence presented at trial showed that Alarid was the head of a drug-importing operation that brought marijuana from Mexico into the United States via a tunnel. The exit point of the tunnel was located in a warehouse in the Otay Mesa area of San Diego county. From the warehouse, the drugs were transported by tractor-trailer to various other destinations in the country. Over 30, 000 kilograms of marijuana was discovered in the warehouse, at the tunnel's entry point, or in transit from the warehouse. Authorities had been monitoring the warehouse for nearly a year before arrests were made.
Through counsel, Alarid took an appeal, which was unsuccessful. He then filed three lengthy motions (Docket nos. 109, 111, and 113) pursuant to 28 U.S.C. § 2255, seeking to vacate his conviction. The three motions are virtually identical, except that the first two include exhibits. If the Court were to treat the third as a separate petition, it would be barred as both untimely and successive. But because the three motions are quite similar, the Court construes the third as an amended version of the first two, although it also considers the first two as being incorporated by reference into the third. In any event, Alarid's claims in all three sets of briefs are virtually the same, and none of them merit relief.
In connection with his appeal, Alarid ordered transcripts of the motions in limine hearing and the entire trial, and they are filed in the docket. Alarid also attached some medical documents to his first two petitions, in support of his competency argument.
If the motion, files, and records of the case conclusively show that the petitioner is entitled to no relief, the Court may deny the motion without requiring the government to respond or holding a hearing. See § 2255(b). A § 2255 motion may not be used to litigate claims that were litigated on direct appeal. See United States v. Jingles, 702 F.3d 494, 498-99 (9th Cir. 2012). Claims that could have been, but were not, raised on direct appeal are procedurally defaulted, and a petitioner seeking to raise them in a § 2255 motion must show cause and prejudice or actual innocence. Bousley v. United States, 523 U.S. 614, 622 (1998). But ineffective assistance of trial counsel claims, which most of Alarid's claims are, need not be raised on direct appeal to preserve them for collateral attack. See United States v. Withers, 638 F.3d 1055, 1066 (9th Cir. 2011) (citing Massaro v. United States, 538 U.S. 500, 504 (2003)).
Most of Alarid's claims are based on alleged ineffective assistance of trial counsel, and as such are governed by Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court, noting the "wide latitude" that criminal defense counsel are afforded, and the fact that "[t]here are countless ways to provide effective assistance in any given case, " has held that "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689. The Court has also instructed lower courts to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. The burden falls on the defendant, Alarid, to overcome the presumption that the actions he challenges might be considered sound trial strategy. Id.
Moreover, even clearly-demonstrated errors by counsel do not entitle a defendant to relief. Such errors must be shown to be prejudicial. Id. at 693. That is, Alarid must show there is a "reasonable probability" that, but for his trial counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A "reasonable probability" is less than a preponderance of the evidence, but more than the possibility of some conceivable effect; it must undermine confidence in the outcome. Id. at 693-94.
Alarid charges his trial counsel with:
1. Failure to challenge "omission of elements" and the government's burden of proof;
2. Failure to address a confrontation clause violation;
3. Failure to challenge "Racial References of Ethnic Groups" made by a witness; and
4. Failure to "explore into Alarid's competency" and to request a ...