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United States v. Orozco-Lopez

United States District Court, D. Oregon

February 1, 2018


          Billy J. Williams Attorneys for Plaintiff

          Rubio Gualberto Tzui-Uc Defendant Pro Se

          OPINION & ORDER

          HERNANDEZ, District Judge

         On January 27, 2016, a jury found Defendant guilty of conspiring to import, distribute, and possess with intent to distribute methamphetamine and cocaine, and of using communication facilities in furtherance of drug trafficking, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 843, 846, 952, and 960. ECF 1 (indictment), ECF 756 (jury verdict, redacted); ECF 757 (jury verdict, unredacted and filed under seal). On July 6, 2016, Defendant was sentenced to 120 months in custody and five years of supervised release. ECF 828, ECF 829. A Judgment of Conviction was filed on July 7, 2016. ECF 829.

         Defendant moves to vacate or correct his sentence under 28 U.S.C. § 2255. ECF 904. He also moves for appointment of counsel. ECF 911. Because Defendant's claims have no merit or are procedurally defaulted, I deny the § 2255 motion. Because the motion and record conclusively show that Defendant is entitled to no relief, no evidentiary hearing is required. Defendant's motion for appointment of counsel is also denied.


         In a March 5, 2014 indictment, the grand jury charged Defendant, along with several others, with conspiring to import, to distribute, and to possess with intent to distribute, heroin, cocaine, and methamphetamine, beginning on or before July 2013 and continuing through the date of the indictment. ECF 1. The indictment also charged the use of communication facilities in furtherance of the drug trafficking. Id.

         The indictment was the result of a several-months investigation into a drug trafficking organization managed by co-defendant Juan Orozco-Lopez. The investigation included court-authorized wire surveillance over twelve cell phones, the use of a confidential source (CS), and a controlled buy. Several searches authorized by United States Magistrate Judges were conducted. Relevant facts regarding the controlled buy and the searches are detailed in my July 16, 2015 Opinion & Order denying Defendant's motion to suppress. ECF 541. These facts were essentially unchanged at trial.

         Defendant was arraigned on March 12, 2014, and attorney Tom Coan was appointed to represent him. ECF 45. Several months later, Coan moved to withdraw. At a hearing on November 5, 2015, I granted the motion. ECF 303. On November 6, 2014, attorney Todd Bofferding was appointed to represent Defendant. ECF 304. Several months after his appointment, Bofferding moved to withdraw. On March 30, 2015, I conducted a hearing pursuant to Faretta v. California, 422 U.S. 806 (1975), granted the motion to withdraw, and allowed Defendant to proceed pro se. ECF 419. At Defendant's request, I appointed Bofferding as Defendant's standby lawyer. Id.

         Both Defendant himself and Bofferding filed separate motions to suppress in April and June 2015. ECF 433, 470. During this time, other motions filed by Defendant were resolved. ECF 458 (finding motion for legal research resolved with standby counsel and investigator; terminating motion for settlement conference as court lacked authority to order one). On July 8, 2015, I conducted an evidentiary hearing and heard oral argument on the motions to suppress. ECF 532. I also resolved motions related to discovery. Id.; ECF 533. As indicated above, on July 16, 2015, I denied the motion to suppress in a written Opinion. ECF 541.

         During the evidentiary hearing on the suppression motion, Defendant decided to have Bofferding represent him again. ECF 532; see also ECF 646 (July 6, 2015 Transcript). Bofferding represented Defendant throughout trial.[1] However, after trial, Bofferding again moved to withdraw. ECF 782. After another Faretta hearing, I granted the motion and Defendant proceeded pro se throughout sentencing. ECF 798.

         After the Judgment of Conviction was filed, Defendant filed a notice of appeal. ECF 832. Counsel was appointed to assist with the appeal. ECF 850, 854. On December 8, 2016, the Ninth Circuit granted Defendant's voluntary motion to dismiss the appeal. ECF 879.


         I. Section 2255 Motion Standards

         Under § 2255, a federal prisoner in custody may move the sentencing court to vacate, set aside, or correct a sentence on the basis that the sentence violates the Constitution or the laws of the United States. 28 U.S.C. § 2255(a); United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (citing Davis v. United States, 417 U.S. 333 (1974)).

         The petitioner must demonstrate that an error of constitutional magnitude had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) ("We hold now that Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.").

         A district court must grant a hearing "[u]nless 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). In determining whether a § 2255 motion requires a hearing, "the standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted." Withers, 638 F.3d at 1062 (brackets and internal quotation marks omitted). A district court may dismiss a § 2255 motion based on a facial review of the record "only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are 'palpably incredible or patently frivolous.'" Id. at 1062-63 (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)); see United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980) (conclusory statements in a § 2255 motion are insufficient to require a hearing).

         Habeas review is not an alternative to direct appeal. Bousley v. United States, 523 U.S. 614, 621 (1998) ("Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.") (internal quotation marks omitted). Absent a showing of cause and prejudice, a habeas petitioner procedurally defaults all claims that were not raised in his direct appeal, other than claims asserting ineffective assistance of counsel. Massaro v. United States, 538 U.S. 500, 504 (2003). "[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167-68 (1982). To demonstrate "cause, " the defendant must establish that "'some objective factor external to the defense impeded his adherence to the procedural rule." United States v. Skurdal, 341 F.3d 921, 925 (9th Cir.2003) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). For "prejudice, " the defendant must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170. The district court does not need to address both prongs if the defendant fails to satisfy one. Id. at 168.

         A defendant who fails to show cause and prejudice to excuse a procedural default, may still obtain review on a § 2255 collateral attack by demonstrating the likelihood of his actual innocence. United States v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007). To establish actual innocence, the defendant must demonstrate that in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011); see also Bousley, 523 U.S. at 623 ("'actual innocence' means factual innocence, not mere legal insufficiency").

         II. Ineffective Assistance of Counsel Standards

         Claims of ineffective assistance of counsel provide an exception to the procedural default rule. Massaro, 538 U.S. at 504. Courts use a two-part test to determine whether a defendant has received constitutionally deficient assistance of counsel. Premo v. Moore, 562 U.S. 115, 121 (2011). Under this test, a defendant must prove that counsel's assistance was deficient and that the deficient performance prejudiced the defense. Id.; see also Schurz v. Ryan, 730 F.3d 812, 815 (9th Cir. 2013) (Defendant must show not only that counsel's performance was deficient but that the deficient performance prejudiced the defendant).

         To prove the deficiency of counsel's performance, the defendant must show counsel made errors so serious that his "'representation fell below an objective standard of reasonableness''" under prevailing professional norms. Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). The court must inquire "whether counsel's assistance was reasonable considering all the circumstances" at the time of the assistance. Strickland, 466 U.S. at 688.

         In assessing whether counsel's performance was deficient, courts must "'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and make every effort 'to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'" Hibbler v. Benedetti, 693 F.3d 1140, 1149 (9th Cir. 2012) (quoting Strickland, 466 U.S. at 689). Ultimately the defendant's "burden is to show 'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687).

         "To satisfy the prejudice prong under Strickland, a defendant must show 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Saesee v. McDonald, 725 F.3d 1045, 1048 (9th Cir. 2013) (quoting Strickland, 466 U.S. at 694). "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Saesee, 725 F.3d at 1048 (quoting Strickland, 466 U.S. at 695).

         The court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant[.]" Strickland, 466 U.S. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Id.


         In his § 2255 motion, Defendant raises nine grounds for relief. Ground One alleges that he received ineffective assistance of counsel because counsel did not challenge what Defendant believes was "fabricated evidence." Def.'s § 2255 Motion 3, 13-14. In Ground Nine, he alleges that his counsel failed to present exculpatory evidence, failed to object to the unlawful admission of fabricated evidence, failed to timely request appropriate jury instructions, failed to timely object to insufficient instructions, failed to ...

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