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Lepez-Alvarez v. United States

United States District Court, Ninth Circuit

December 11, 2013

BULMARO LEPEZ-ALVAREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

OPINION AND ORDER

MICHAEL W. MOSMAN, District Judge.

A jury found Petitioner Bulmaro Lepez-Alvarez guilty [199] of one count of distributing cocaine and one count of distributing five grams or more of methamphetamine on April 24, 2008. I sentenced him [250] to a term of confinement of 360 months on each count, to be served concurrently. Mr. Lepez-Alvarez now moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 [281]. For the reasons set forth below, I DENY petitioner's motion.

BACKGROUND

In April of 2008, Mr. Lepez-Alvarez was tried before a jury on charges of distributing cocaine and distributing five or more grams of methamphetamine, both in violation of 21 U.S.C. § 841(a)(1). The Government's key witnesses included cooperating informant Adnan Fares and Detective James Danner of the Regional Organized Crime Narcotics Agency ("ROCN").

Mr. Fares testified that he had known Mr. Lepez-Alvarez by the name of "Miguel" in 2001. At that time, Mr. Fares was in the business of selling pseudoephedrine pills for use in manufacturing methamphetamine. When ROCN task force members met with Mr. Fares in February of 2005, he informed them that "Miguel" had approached him to inquire about buying pseudoephedrine pills, and also to ask whether Mr. Fares knew anyone interested in purchasing cocaine. ROCN arranged two controlled buy operations, in which Mr. Fares purchased approximately one ounce of cocaine and approximately seventeen grams of methamphetamine from Mr. Lepez-Alvarez.

Detective Danner described the results of a search warrant served on Mr. Lepez-Alvarez's residence soon after the two controlled buys. He and the other officers who executed the warrant found the residence entirely empty, apart from a few photographs, items of clothing, and numerous materials used to manufacture and distribute methamphetamine. The Government first attempted to introduce one of the photographs into evidence during Det. Danner's testimony, but he was unable to declare with confidence that it depicted Mr. Lepez-Alvarez, and the defense's authenticity objection was sustained. The Government successfully introduced evidence of multiple recorded conversations between Mr. Lepez-Alvarez and Mr. Fares establishing that the controlled buys took place.

Mr. Lepez-Alvarez took the stand in his defense, aiming to establish that he sold cocaine and methamphetamine to Mr. Fares only under duress. He testified that he traveled to the United States from Mexico because he had heard that his brother, Leo, was in danger. Upon arrival, he learned that Leo owed Mr. Fares a large amount of money, and that Mr. Fares would hurt Leo if the debt were not repaid. Mr. Lepez-Alvarez claimed that he sold narcotics to Mr. Fares only because he feared that Leo would be harmed if he refused. Mr. Lepez-Alvarez had considered presenting an entrapment defense, but his counsel represented to me during a hearing on pretrial motions that he had decided not to do so. (Tr. [214] at 18:11-20.)

The Government cross-examined Mr. Lepez-Alvarez concerning his criminal record in the United States, which includes convictions of possession for sale of a controlled substance, delivery of a controlled substance, possession of a firearm as a felon, and illegal reentry. The Government also questioned him about the photograph that it had presented to Det. Danner. He confirmed that he was depicted in the photograph, and I admitted it into evidence.

I issued final instructions to the jury on April 24, 2008, including instructions on the defense of duress. During their deliberations, the jury submitted the following question to the Court on a handwritten note:

Is the key question: Proof of innocence or guilt based on
- under duress
- not under duress

(Minutes Ex. D [200-2] at 1.) I conferred with counsel for the parties, and ultimately answered the question "yes." ( Id. ; Minutes [200] at 1.) The jury returned a verdict of guilty on both counts.

Mr. Lepez-Alvarez timely appealed from his conviction and sentence. The Ninth Circuit affirmed, holding that the Court did not interfere with Mr. Lepez-Alvarez's right to represent himself, [1] that the search warrant served on his residence satisfied the Fourth Amendment, and that his sentence was reasonable. United States v. Lepez-Alvarez, 444 F.Appx. 175, 176-77 (9th Cir. 2011).

Mr. Lepez-Alvarez's present motion [281] was filed in this Court on October 24, 2012. Finding that it had been filed more than one year after his conviction became final, I denied the motion [291] as untimely. See 28 U.S.C. § 2255(f). The Ninth Circuit reversed [300], finding that Mr. Lepez-Alvarez had submitted his motion to a prison official and the official had mailed the motion within the statutory time limit. See R. Gov. § 2255 Proc. 3(d). I therefore turn to the merits of Mr. Lepez-Alvarez's motions.

DISCUSSION

Mr. Lepez-Alvarez claims that his trial counsel, John Storkel, rendered ineffective assistance in the following ways: (1) failure to communicate with Mr. Lepez-Alvarez; (2) failure to call witnesses in support of the duress defense and to impeach government witnesses;

(3) failure to adequately cross-examine government witnesses; (4) failure to object to inadmissible evidence; (5) unreasonable advice that Mr. Lepez-Alvarez should take the stand;

(6) and failure to seek clarification of a juror question.[2] (Mot. [281] at 8.) Because numbers (2) and (5) above are closely related, I consider them together.

To prevail on a claim of ineffective assistance of counsel, a section 2255 petitioner must show (1) that counsel's performance was "deficient" and (2) that the deficient performance "prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). "Failure to satisfy either prong of the Strickland test obviates ...


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