United States District Court, D. Oregon
J. Williams Attorneys for Plaintiff
Gualberto Tzui-Uc Defendant Pro Se
OPINION & ORDER
HERNANDEZ, District Judge
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
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.
& PROCEDURAL BACKGROUND
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.
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
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.
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.
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. 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.
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.
Section 2255 Motion Standards
§ 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.
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.").
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).
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.
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
Ineffective Assistance of Counsel Standards
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).
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.
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
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).
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."
§ 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