United States District Court, C.D. California
CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE
INTRODUCTION AND BACKGROUND
before the Court is defendant Aaron Ramos'
(“Ramos”) “Statement of Facts and
Memorandum of Points and Authorities in Support of Petition
for Writ of Habeas Corpus; Discovery and an Evidentiary
Hearing Requested.” Dkt 448-1
(“Mot.”). The government filed an opposition on
October 17, 2019. Dkt 451 (“Opp.”). Ramos filed a
reply on November 18, 2019. Dkt. 452 (“Reply”).
4, 2013, a grand jury returned an indictment charging Ramos
and Sharon Paiz (“Paiz”) with two criminal
counts: (1) conspiracy to distribute methamphetamine in
violation of 21 U.S.C. § 846; and (2) distribution of
methamphetamine in violation of 21 U.S.C. § 841(a)(1)
and 21 U.S.C. § 841(b)(1)(A)(viii). Dkt. 1. The
government and Paiz reached a plea agreement on March 14,
2014, and Paiz formally entered a guilty plea on March 25,
2014. Dkt. 69, 76.
proceeded to trial on September 23, 2014. Dkt. 220. Following
a five-day trial, the jury convicted Ramos on both counts.
Dkt. 228. Ramos filed a motion for a new trial on February 3,
2015. Dkt. 253. The Court granted Ramos' motion on March
16, 2015, determining that because of statements expressed by
a juror during post-verdict polling, “the Court cannot
state with certainty that the jury's verdict was
unanimous[.]” Dkt. 269 at 10. A grand jury returned a
first superseding indictment on June 30, 2015, charging Ramos
with an additional count for attempted distribution of
methamphetamine. Dkt. 297.
retrial began on December 1, 2015. Dkt. 336. At the retrial,
the government introduced the transcripts of telephone
conversations between Ramos and a confidential informant
(“the informant”). During a February 10, 2010 call,
Ramos and the informant discussed “glass, ” a
term commonly used to refer to methamphetamine. See
Dkt. 451, Exhibit A (“Ex. A”). According to the
government's transcript, in a conversation later that
day, Ramos notified the informant that Ramos had
methamphetamine “on Deck.” Id. at 534.
In a conversation on February 11, 2010, the informant and
Ramos agreed to meet on February 12, 2010, at the residence
where Ramos lived, to discuss a sale of methamphetamine.
Id. at 565. A third-party supplier was to provide
the narcotics, while the government's case agent,
operating as a financier, was to provide the funding for the
transaction to the informant. Opp. at 2. In a phone call ten
minutes before the scheduled meeting, Ramos told the
informant not to be late because “I can't be having
these people waiting on [the informant].” Ex. A at
government and Ramos agree that, prior to arriving to the
scheduled meeting, the informant was equipped with a
recording device. Mot. at 2; Opp. at 2. When the informant
arrived at the scheduled meeting, the recording device
initially captured both audio and video. Mot. at 2; Opp. at
2. After some twenty minutes, the recording device stopped
capturing video but continued recording audio. Mot. at 2;
Opp. at 2.
the retrial, the parties offered competing transcripts (and,
where applicable, English translations) of the recording
captured by the informant's recording device. The parties
agreed that the video portion of the recording showed that
the informant arrived late to the meeting, that the supplier
had therefore left the meeting, and that Paiz had agreed to
retrieve the narcotics from the supplier and return to the
meeting. Ex. A at 575-87; Dkt. 451, Exhibit B (“Ex.
B”) at 726-45. The parties disagreed, however,
regarding the audio-only portion of the recording. The
government's translator “identified Mr. Ramos'
voice speaking in a participatory way during the drug deal,
while the defense translator did not (and generally found
more words to be unintelligible as compared to the government
version).” Mot. at 5. During the retrial, Ramos moved
for a mistrial based upon allegedly improper statements made
by the government, and the Court reserved judgment, allowing
Ramos to renew the motion following the trial. Dkt. 346. On
December 3, 2015, the jury returned a verdict, convicting
Ramos on all three counts. Dkt. 347.
brought a renewed motion for a mistrial on January 25, 2016,
on the grounds that the government had made misstatements of
fact and law during the government's closing argument.
Dkt. 364. On February 29, 2016, the Court denied Ramos'
motion for a mistrial. Dkt. 371. On April 4, 2016, the Court
sentenced Ramos to 168 months in prison. Dkt. 379. During the
hearing, the Court stated: “Obviously, I do want to
hear from Mr. Ramos if he wishes to be heard. No?” Dkt.
420 at 22. Ramos' counsel responded, “[w]e can move
forward, Your Honor.” Id.
thereafter filed a notice of appeal to the United States
Court of Appeals for the Ninth Circuit on April 6, 2016. Dkt.
383. The Ninth Circuit affirmed Ramos' convictions, but
vacated Ramos' sentence because although the Court
inquired of Ramos' counsel whether Ramos wished to be
heard, the Court “fail[ed] to personally invite Ramos
to allocute at his sentencing hearing.” Dkt. 430 at 4.
Accordingly, the Ninth Circuit remanded for resentencing.
Id. at 6.
Court resentenced Ramos on September 17, 2018. Dkt. 443.
During the hearing, the Court provided Ramos with the
opportunity to allocute, and during Ramos' allocution,
Ramos raised alleged deficiencies in his trial counsel's
performance during the retrial. Dkt. 448-1, Ex. A
(“Sentencing Tr.”) at 9. Ramos expressed to the
Court his view that “I feel that I didn't get a
fair trial, . . . on the fact that my lawyer didn't help
me out.” Id. at 11. Because Ramos was
represented by the Office of the Federal Public Defender
during his retrial, the Court noted that, for the purposes of
any potential habeas petition raising ineffective assistance
of counsel, “if I need to appoint someone once you
identify someone, I'm prepared to do that.”
Id. at 15.
October 10, 2018, Ramos filed a motion seeking the
appointment of counsel to assist in the preparation of
Ramos' habeas petition. Dkt. 444. Consequently, on
October 11, 2018, the Court appointed counsel from the
Criminal Justice Act Panel to represent Ramos in connection
with his petition. Dkt. 445. Ramos subsequently filed the
present petition on September 17, 2019, raising ineffective
assistance of his trial counsel. See Mot.
petition pursuant to 28 U.S.C. § 2255 challenges a
federal conviction and/or sentence to confinement where a
prisoner claims “that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” Sanders v. United States, 373 U.S. 1,
2 (1963). Ineffective assistance of counsel constitutes a
violation of the Sixth Amendment right to counsel, and thus,
if established, is grounds for relief under § 2255. To
establish ineffective assistance of counsel, a petitioner
must prove by a preponderance of the evidence that: (1) the
assistance provided by counsel fell below an objective
standard of reasonableness; and (2) there is a reasonable
probability that, but for counsel's errors, the result of
the proceeding would have been different. Strickland v.
Washington, 466 U.S. 688, 694 (1984). A § 2255
motion may be resolved without an evidentiary hearing if
“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(b).
of ineffective assistance of counsel fails if either prong of
the test is not satisfied, and a petitioner seeking habeas
relief has the burden of establishing both prongs.
Strickland, 466 U.S. at 697. With respect to the
first prong, the Court's review of the reasonableness of
counsel's performance is “highly deferential,
” and there is a “strong presumption” that
counsel exercised reasonable professional judgment.
Id. The petitioner must “surmount the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.”
Id. After establishing an error by counsel and thus
satisfying the first prong, a petitioner must satisfy the
second prong by demonstrating that his counsel's error
rendered the result unreliable or the trial fundamentally
unfair. Lockhart v. Fretwell, 506 U.S. 364, 372
(1993). A petitioner must show that there is a reasonable
probability that, but for his counsel's error, the result
of the proceeding would have been different.
Strickland, 466 U.S. at 694. A “reasonable
probability” is a probability sufficient to undermine
confidence in the outcome. Id. The Court need not
necessarily determine whether petitioner has satisfied the
first prong before considering the second; “[i]f it is
easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, that course should be
followed.” Strickland, 466 U.S. at 670.
Indeed, a petitioner's failure to allege the kind of
prejudice necessary to satisfy the second prong is sufficient
by itself to justify a denial of a petitioner's §
2255 motion without a hearing. Hill v. Lockhart, 474
U.S. 52, 60 (1985).
asserts several bases for his ineffective assistance of
counsel claim, including his trial counsel's purported
failures: “(1) to file a motion to exclude the video
and audio recording because it was unreliable, incomplete,
and violated his due process and Confrontation Clause rights;
(2) to retain a voice identification expert; (3) to ask the
case agent during trial to identify the participants on the
recording; and (4) to challenge a biased juror.” Mot.
at 6. The Court addresses each of Ramos' contentions in
Motion to Exclude
contends that during the retrial, “[t]he government had
chosen to use equipment with a proven track record of
failure, leaving an unintelligible partial video and full
audio record that was highly prejudicial in that it recorded
a drug sale, and highly confusing in that it was not clear
who had participated and in what
capacity.” Mot. at 7. Ramos further asserts that, at
the time of the retrial, “[t]he government no longer
possessed the recording device itself, so [Ramos] could not
determine whether it had actually malfunctioned, or whether
the confidential informant . . . had just turned it
off.” Mot. at 7-8. Thus, according to Ramos,
“a reasonable defense lawyer would have filed a motion
to suppress the audio/video tape both on constitutional and
evidentiary grounds” and “[b]y not filing such a
motion” to “exclude the video and audio
recordings, and their questionable transcripts, . . . trial
counsel provided deficient performance[.]” Id.
at 8-9. The Court addresses Ramos' evidentiary and
constitutional efforts in turn.
Evidentiary Objection Based on Reliability
Court does not find persuasive Ramos' claims that his
trial counsel's failure to move to suppress or exclude
the audio/video recording and the recording's transcripts
rises to the level of ineffective assistance of counsel
because “[t]he failure to raise a meritless legal
argument does not constitute ineffective assistance of
counsel.” Shah v. United States, 878 F.2d
1156, 1162 (9th Cir. 1989).
Ramos contends that “[t]he limited probative value of
the recording was substantially outweighed by the danger of
unfair prejudice, confusion of the issues, and misleading of
the jury under Rule 403.” Mot. at 10. However, a
“recorded conversation is generally admissible unless
the unintelligible portions are so substantial that the
recording as a whole is untrustworthy.” United
States v. Gadson, 763 F.3d 1189, 1205 (9th Cir. 2014).
During the retrial, the government “retained a
different interpreter to prepare a brand new transcript . . .
[who] testified that using high-quality headphones, he
repeatedly watched and listened to the recordings, spending
46 hours on the project[.]” Mot. at 5. Ramos was able
to retain his own interpreter, “who also repeatedly
reviewed the recordings using headphones, listening to some
portions up to 40 times.” Id. Ultimately,
“[t]he jurors were given copies of these competing
transcripts, each noting the identity of the speakers and the
words said, as determined by each interpreter.”
Id. That both the government and Ramos were able to
retain interpreters who were able to understand the recording
to the extent necessary to prepare competing transcripts
belies Ramos' claim that the recording was so
unintelligible so as to require exclusion. See
United States v. Mercado-Ulloa, 267 Fed.Appx. 568, 570
(9th Cir. 2008) (finding that trial counsel's failure to
object to admission of taped conversation and written
transcript did not amount to ineffective assistance ...