Opinion
EP-04-CA-169-DB, EP-01-CR-316-DB.
March 29, 2006
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Benito Martinez's ("Martinez") pro se "Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody" ("Motion to Vacate") [Docket No. 61] and "Brief in Support of Petition for Relief Pursuant to 28 U.S.C. § 2255" ("Brief in Support of Motion to Vacate") [Docket No. 62], both filed on May 3, 2004. Therein, Martinez raises nine claims for relief from his conviction and sentence imposed in criminal cause no. EP-01-CR-316-DB. Respondent, through the United States Attorney, filed a "Response to Motion to Vacate, Set Aside or Correct Sentence Pursuant to Section 2255" ("Response") [Docket No. 64] on July 2, 2004. Martinez's "Opposition to Government's Response to Motion to Vacate, Set Aside, or Cirrect [ sic] Sentence Pursuant to 28 U.S.C. § 2255" ("Reply") [Docket No. 69] and "Supportive Pleading in Support of Opposition to Government's Response to Petitioner's § 2255" ("Brief in Support of Reply") [Docket No. 70] followed on August 2, 2004. After due consideration, the Court concludes that only Ground Six of Martinez's Motion to Vacate, in which Martinez alleges that his trial counsel rendered ineffective assistance, is entitled to an adjudication on the merits. After reviewing Martinez's multi-faceted ineffective assistance claim, the Court finds that Martinez has not carried his burden under the applicable legal test and is therefore not entitled to relief. The Court will accordingly denies Martinez's Motion to Vacate. The Court further declines to certify Martinez's issues for appeal.
I. FACTUAL AND PROCEDURAL HISTORY A. Criminal Cause No. EP-01-CR-316-DB
On February 21, 2001, the Grand Jury sitting in El Paso, Texas, returned a two-count Indictment against Martinez and Jesus Romero ("Romero"), charging them with conspiracy to possess 100 kilograms or more of marijuana, a controlled substance, with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), and 846 ("Count One"); and possession of 50 kilograms of marijuana with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(vii) ("Count Two"). By random assignment, the Clerk of the Court added Martinez's case to the undersigned judge's docket. On March 30, 2001, the Government filed an Information notifying Martinez that, pursuant to 21 U.S. § 851, if he were convicted of one or more of the offenses charged, the Government intended to seek an enhanced sentence based on Martinez's previous federal drug conviction. Martinez entered a not-guilty plea on March 26, 2001.
On November 8, 2001, the undersigned judge transferred the case to the docket of the Honorable Hayden Head, Jr., United States Judge for the Southern District of Texas, with Judge Head's consent. Judge Head presided at Martinez's trial, which commenced on November 13, 2001, as a Visiting Judge. Romero did not stand trial with Martinez. Court-appointed attorney Kenneth Del Valle ("Del Valle") represented Martinez at his trial and sentencing.
On March 16, 2001, a United States Magistrate Judge found Martinez indigent and accordingly appointed Assistant Federal Public Defender Maureen Franco to represent him. In a motion dated March 30, 2001, however, Martinez notified the Court that he had retained the services of attorney Christopher Allen Antcliff ("Antcliff"). Martinez asked the Court to allow Antcliff to substitute as counsel and to permit Franco to withdraw as Martinez's attorney of record. The Court granted the motion in an Order dated April 2, 2001. On June 1, 2001, Antcliff filed a motion to withdraw from the case, citing a conflict with Martinez that had damaged the attorney-client relationship beyond repair. The Court granted Antcliff's motion to withdraw in an Order dated June 1, 2001 and referred the matter to a United States Magistrate Judge for the appointment of counsel. On June 4, 2001, the Magistrate Judge appointed Del Valle to represent Martinez.
The Government's chief witnesses against Martinez were Ronald Riley ("Riley"), a separately indicted co-conspirator, and Efren Calderon ("Calderon"), a Government informant. At trial, however, only Calderon testified against Martinez. When called by the Government to testify, Riley took the stand, admitted that he had pleaded guilty to charges arising from the same conspiracy, but then refused to testify further.
On November 14, 2001, the jury found Martinez guilty of Count One, but acquitted him as to Count Two. That same day, by consent, Judge Head transferred Martinez's case back to the undersigned judge's docket. The undersigned judge presided over Martinez's sentencing and entered Final Judgment on January 28, 2002, sentencing Martinez to a 130-month term of imprisonment and an 8-year term of supervised release. The undersigned judge additionally ordered Martinez to pay a $100.00 special assessment.
Martinez timely appealed, arguing that: (1) the Court violated Federal Rule of Criminal Procedure 32(c)(3)(A) because it failed to determine that Martinez had read the Presentence Investigation Report ("Presentence Report") and discussed it with Del Valle; (2) the Court erred in increasing Martinez's offense level by two levels, based on its finding that he was a leader or organizer in the conspiracy to distribute marijuana; and (3) the Court erred in attributing 560 kilograms of marijuana to Martinez, because only 267 kilograms of marijuana were actually seized. The Fifth Circuit Court of Appeals rejected Martinez's claims on the merits in an Order filed on January 29, 2003. B. Martinez's Motion to Vacate
Martinez raises nine claims for relief in his Motion to Vacate, which the Court sets forth below:
I. The evidence was insufficient to support a conviction or admissibility of hearsay statements allegedly made in furtherance of the charged conspiracy [("Ground One")].
II. Where Indictment was made without joinder of all co-conspirators under Rule 8(b) of the Federal Rules of Criminal Procedure, the [I]ndictment should be dismissed where it was brought for an improper purpose [("Ground Two")].
III. [The] Prosecutor's conduct was inadmissible where [the] prosecution called a witness who claimed the privilege not to testify, and where no limit[ing] instruction was given to the jury, denying the Defendant his Fifth and Sixth Amendment rights [("Ground Three")].
IV. News media ads and commercials den[ied] Defendant a fair and impartial jury where it influences jurors across America that [the] charges brought against defendant equates [with] terrorism, and with the 9-11 Committe[e] continually being brought up redirecting the Oklahoma incident and the Twin Towers Events [("Ground Four")].
V. Where the [I]ndictment charged a single count of conspiracy, and [the] prosecution created multiple conspiracies during trial, the verdict must be vacated, [and] the [I]ndictment dismissed, where facts vary from the created charge [("Ground Five")].
VI. Ineffective Assistance of Counsel [("Ground Six")].
VII. Where the drug quantity was arrived [at] in this case in a manner inherently imprecise, and was not under the "clear and convincing st[an]dard[,"] the attributed error of both the district court and appellate court created error on hearsay, withou[t] factual support, and the Defendant is entitled to have his quantity re-evaluated and his sentence reduced [("Ground Seven")].
VIII. The § 851 Enhancement is invalid under Apprendi and Jones, where § 841 holds multiple and separate offenses and punishments not set forth in the [I]ndictment [re]lating to prior convictions, including "death and bodily injury [ sic][("Ground Eight")]."
IX. Where Defen[d]ant's sentence lacked evidence to place him as a leader-organizer, under the foreseeability doctrine, the decisions by the district court and appellate courts are in plain error, and the Defendant's sentence must be vacated and Defendant be resentenced [("Ground Nine")]."
In Ground Six of his Motion to Vacate, Martinez raises multiple and occasionally duplicative allegations of ineffective assistance against Del Valle, which the Court now summarizes. First, Martinez contends that Del Valle failed investigate the Government's case, including the witnesses the Government intended to call at trial and whether Martinez had an alibi. Second, Martinez asserts that Del Valle told Martinez that Del Valle would do a better job on Martinez's case if Martinez paid him $50,000. When Martinez did not pay this sum, Martinez says, Del Valle reduced his efforts towards Martinez's defense and dedicated more time and effort to another criminal case, in which the defendant was able to pay Del Valle more money than Martinez could. Third, Martinez argues that Del Valle never came to see him, and did not update Martinez or his family about the case's status and important dates relating to the proceedings. Fourth, Martinez avers that Del Valle did not let Martinez listen to taped telephone conversations, which were part of the Government's evidence against Martinez, so that Martinez could confirm whether it was actually Martinez's voice on the tapes, before stipulating that the voice belonged to Martinez. Martinez also faults Del Valle for subsequently arguing that the voice on the tapes did not belong to his client. Fifth, Martinez claims that Del Valle was unprepared for trial and sentencing. Sixth, Martinez alleges that Del Valle did not seek joinder of Martinez's co-conspirators, pursuant to Federal Rule of Criminal Procedure 8, and failed to object when Riley took the stand but refused to testify. Seventh, Martinez asserts that Del Valle failed to object to the single charge of conspiracy in the Indictment and allowed the Government to create a variance at trial by alleging multiple conspiracies. Eighth, Martinez contends that Del Valle failed to request a "false in one, false in all" jury instruction after Del Valle impeached and discredited Calderon's testimony. Ninth, Martinez argues that Del Valle did not request a special instruction after the prosecutor urged the jury to make an example out of Martinez, based on the news they saw in the media. Elsewhere in his Brief in Support of Motion to Vacate, Martinez alleges that Del Valle rendered ineffective assistance because, although Del Valle informed Martinez of a verbal plea offer from the Government, Del Valle urged Martinez to accept or reject the offer without first showing Martinez an actual written agreement memorializing the offer's terms. Martinez also faults Del Valle for failing to raise an Apprendi objection to the increase in Martinez's sentence under 21 U.S.C. § 851. Martinez further contends that Del Valle did not effectively cross-examine Government witnesses.
Pet'r's Mot. Vacate, docket no. 61, at 7-8, see also Pet'r's Br. in Support of Mot. Vacate, docket no. 62, at 1-2.
Pet'r's Br. in Support of Mot. Vacate, docket no. 62, at 25-26.
Id. at 26.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id. at 11.
Id. at 12.
Id. at 11.
Pet'r's Mot. Vacate, docket no. 61, at 7-8, see also Pet'r's Br. in Support of Mot. Vacate, docket no. 62, at 1-2.
Pet'r's Br. in Support of Mot. Vacate, docket no. 62, at 25-26.
Id. at 26.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id. at 11.
Id. at 12.
Id. at 11.
In his Motion to Vacate, Martinez concedes that the Court of Appeals previously adjudicated Grounds Seven and Nine on direct appeal. As to his other grounds for relief, Martinez argues that he did not raise them previously due to the ineffective assistance of his appellate counsel. Alternatively, Martinez asserts that he is actually innocent of the offense charged in Count One of the Indictment because he never "transact[ed] with [Government] informant Calderon on any occasion, but did loan him $1,000 because he had no place to sleep; that after I b[o]rrowed [ sic] the money, Calderon went and spent thousands on new furniture and upon my requesting the $1,000 back, was brought up in the foregoing matter and charged with conspiracy." Martinez therefore asserts that he may raise Grounds One through Six and Ground Eight for the first time on collateral review. C. Respondent's Response
Pet'r's Mot. to Vacate, docket no. 61, at 8 ¶ 13.
Id.
Pet'r's Br. in Support of Mot. to Vacate, docket no. 62, Ex. 6 (Decl. of Benito Martinez) at ¶ 2.
Pet'r's Opp. to Gov't's Resp. to Mot. to Vacate, docket no. 69, at 4-6.
Respondent contends that Martinez is procedurally barred from raising Grounds Seven and Nine because the Court of Appeals previously adjudicated those claims on the merits in Martinez's direct appeal. Respondent further argues that Martinez is precluded from raising Grounds One, Two, Three, Four, Five and Eight because he could have raised these issues on direct appeal, but did not, and has failed to show cause and prejudice sufficient to overcome the procedural bar to a merits review. As to Ground Six, Martinez's claim alleging that Del Valle rendered ineffective assistance, Respondent argues that Martinez's allegations are conclusory and therefore inadequate to establish a constitutional claim under the applicable legal standard. Respondent moreover contends that there was no Apprendi violation at Martinez's sentencing. On July 29, 2005, Del Valle filed a detailed affidavit rebutting Martinez's allegations against him. II. MOTIONS TO VACATE PURSUANT TO 28 U.S.C. § 2255
Resp't's Response to Mot. to Vacate, docket no. 64, at 5-6. The Court notes that, in its Response, Respondent expressly argues that Grounds Six and Eight are barred from a merits review, due to procedural default. See id. However, upon reviewing Respondent's accompanying argument, it is clear that Respondent is actually referring to Grounds Seven and Nine of Martinez's Motion to Vacate.
Id. at 6-7. Although Respondent asserts that Ground Seven of Martinez's Motion to Vacate is procedurally defaulted because he did not raise it in a direct appeal, it is clear from Respondent's argument that it actually means that Ground Eight is barred from review for this reason. See id.
Id. at 8-9.
Answer to Ct.'s Order for Tr. Attorney to Show Cause Why He Should Not Be Held in Contempt of Ct., docket no. 88.
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
It is well settled that, absent countervailing equitable considerations, a district court will refuse to adjudicate claims that were previously raised and rejected on direct review. It is also well settled that a collateral challenge may not take the place of a direct appeal. If a petitioner challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows cause for his procedural default and actual prejudice resulting from the error or that the constitutional violation has probably resulted in the conviction of one who is actually innocent.
Withrow v. Williams, 507 U.S. 680 (1993).
See United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) ("[A] collateral challenge may not do service for an appeal").
Id. at 232.
To satisfy the "cause" standard, a petitioner must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel. To establish "actual innocence" sufficient to overcome the procedural bar to review of his claims, a petitioner must present new evidence which, when considered with all the evidence presented at trial, makes it more likely than not that no reasonable juror would have convicted the petitioner. III. MARTINEZ IS NOT ENTITLED TO A MERITS REVIEW OF GROUNDS ONE, TWO, THREE, FOUR, FIVE, SEVEN, EIGHT, AND NINE
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992) (stating that the general rule in the Fifth Circuit is that, except in rare instances where the record on direct appeal is adequate to evaluate such a challenge, an ineffective assistance of counsel claim cannot be resolved on direct appeal because no opportunity existed for the parties to develop the record on the merits of the allegations).
Schlup v. Delo, 513 U.S. 298, 327-28 (1995).
After review, the Court concludes that Ground Six of Martinez's Motion to Vacate is the only claim for relief properly before the Court, and thus, the only one of Martinez's claims which is entitled to a merits review. As Respondent argues and Martinez himself concedes, the Court of Appeals previously adjudicated the issues raised in Grounds Seven and Nine of Martinez's Motion to Vacate. Nothing in Martinez's present Motion to Vacate or associated pleadings persuades the Court that it should revisit the Court of Appeals's disposition of those claims.
As to Grounds One, Two, Three, Four, Five, and Eight, the Court finds that Martinez could have raised these claims in a direct appeal, but did not do so. As noted in the previous section of this Opinion, because a Motion to Vacate is not a substitute for a direct appeal, the Court may reach the merits of the aforementioned claims only if Martinez demonstrates adequate cause for the default and actual prejudice flowing from it, or if Martinez establishes a viable claim of actual innocence.
Shaid, 937 F.2d at 231.
Here, the Court concludes that Martinez has not established cause-and-prejudice or a claim of actual innocence sufficient to overcome the procedural bar to review. To the extent Martinez attempts to show cause for his procedural default by asserting that his appellate counsel performed deficiently by failing to raise these issues, the Court finds that his argument is conclusory and insufficient to defeat the strong presumption that appellate counsel rendered constitutionally adequate assistance. The decision regarding which issues to raise or omit on direct appeal falls well within the scope of appellate counsel's reasonable professional judgement. Martinez moreover cannot show prejudice resulting from his appellate counsel's decision not to raise these issues on appeal, because the Court's review of those claims reveals that they are of extremely dubious legal merit, at best. In any event, contrary to Martinez's position, none of his claims represent "dead-bang winners" or are saved for review by the Supreme Court's opinion in Blakely v. Washington, 542 U.S. 296 (2004), as extended to federal sentencing in United States v. Booker, 543 U.S. 220 (2005).
Darden v. Wainwright, 477 U.S. 168, 184 (1986); Strickland, 466 U.S. 668, 687-91 (1984); Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997); Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995).
See Jones v. Barnes, 463 U.S. 745, 751 (1983) (stating that an indigent defendant does not have a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points).
Pet'r's Opp. to Gov't's Response to Mot. to Vacate, docket no. 69, at 3-4, 7. Insofar as Martinez hopes to rely on the rule announced in Booker to support his Apprendi claims, his reliance is misplaced. The rule announced in Booker does not apply retroactively to judgments, such as Martinez's, that became final before Booker's release. United States v. Gentry, 432 F. 3d 600, 601 (5th Cir. 2005).
Insofar as Martinez claims that he is actually innocent of the offense charged and therefore may circumvent the procedural bar to review, the Court finds that Martinez's allegations regarding his relationship with Calderon do not satisfy the relevant legal standard. The "evidence" is not new, as it must be in order to satisfy the actual innocence exception to the procedural bar, but was clearly known to Martinez at the time of his trial. Moreover, through his allegations, Martinez essentially attacks Calderon's credibility and incentive to testify against him, an issue Del Valle repeatedly brought to the jury's attention when he cross-examined Calderon and during his closing argument. The Court thus finds it highly unlikely that, in light of all the evidence presented at trial, a reasonable juror would not have found Martinez guilty of the crime charged, but for Martinez's present, self-serving allegations. Accordingly, the Court finds that Grounds One, Two, Three, Four, Five, Seven, Eight, and Nine are not entitled to a merits review. The Court now turns to the applicable legal standard governing the Court's adjudication of Ground Six, the only one of Martinez's claims that is properly before the Court.
IV. LEGAL STANDARD — INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
An ineffective assistance of counsel claim has two components. First, the petitioner must show that counsel performed deficiently. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that `the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'"
Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984).
Wiggins, 539 U.S. at 521.
Id.
Id. (quoting Strickland, 466 U.S. at 688).
To establish that counsel's representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his trial counsel's conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel's performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is neither required to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments. Defense counsel is similarly not required to exercise clairvoyance during the course of a criminal trial.
Strickland, 466 U.S. at 687-91.
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (explaining the compelling policy considerations behind Strickland's contemporary, rather than retrospective, assessment of counsel's conduct); Burger v. Kemp, 483 U.S. 776, 789 (1987) (stating that a fair assessment of attorney performance requires the court to make every effort to eliminate the distorting effect of hindsight and to evaluate counsel's decisions based on the then-existing circumstances and counsel's perspective at the time); Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997) (stating that the court will not find inadequate representation merely because, with the benefit of hindsight, it disagrees with counsel's strategic choices).
Strickland, 466 U.S. at 690; Drew v. Collins, 964 F.2d 411, 422 (5th Cir. 1992); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992).
See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996) (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel feared that the jury would not view such testimony as mitigating and that the prosecution might respond to such testimony by presenting its own psychiatric testimony regarding the defendant's violent tendencies); West v. Johnson, 92 F.3d 1385, 1406-09 (5th Cir. 1996) (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defendant and the defendant's family failed to produce any helpful information); cf. Wiggins, 539 U.S. at 524 (holding that, in a capital case, counsel's decision not to expand its mitigation-defense investigation beyond reviewing a presentence investigation report and Department of Social Services records, despite suggestions that additional, significant mitigating evidence existed, was unreasonable and fell below professional standards).
See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) (stating that counsel cannot be held deficient for failing to press a frivolous point); United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (stating that the Sixth Amendment does not require counsel to file meritless motions); Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (noting that the defense of a criminal case is not an undertaking in which everything not prohibited is required, nor does it contemplate the employment of wholly unlimited time and resources).
See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997) (holding that clairvoyance is not a required attribute of effective representation).
Even if counsel's performance falls below an objective standard of reasonableness, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Accordingly, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."
Strickland, 466 U.S. at 691-92.
Id. at 692.
Because a convicted defendant must satisfy both prongs of the Strickland test, his failure to establish either deficient performance or prejudice under that test makes it unnecessary to examine the other prong. Therefore, a convicted defendant's failure to establish that his counsel's performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. Similarly, it is also unnecessary to consider whether counsel's performance was deficient where there is an insufficient showing of prejudice. Moreover, mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue.
Id. at 700; Green, 116 F.3d at 1122; see also Burnett v. Collins, 982 F.2d 922, 928 (5th Cir. 1993) (stating that the defendant bears the burden of proof on both prongs of the Strickland test).
Hoskins, 910 F.2d at 311; Thomas, 812 F.2d at 229-30.
See Strickland, 466 U.S. at 699 (explaining that it is not necessary for a court evaluating the merits of an ineffective assistance claim to analyze the components of the applicable test in any particular order or to evaluate both components if the petitioner fails to carry his burden as to one aspect of the test); Black v. Collins, 962 F.2d 394, 401 (5th Cir. 1992) (stating that a court evaluating a claim of ineffective assistance need not address the components of the applicable test in order, and if a defendant fails to carry his burden as to one component of the test, the court need not address the other component); Pierce, 959 F.2d at 1302 (asserting that an insufficient showing of prejudice pretermits addressing the adequacy prong of the Strickland test for ineffective assistance).
See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (holding that a petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief).
With these principles in mind, the Court turns to the merits of Martinez's ineffective assistance claim.
V. DISCUSSION
After reviewing the record in this cause and the Parties' pleadings, including the affidavits submitted by both Martinez and Del Valle, the Court finds that Martinez has failed to establish a claim of ineffective assistance under Strickland. A. Del Valle's Alleged Failure to Investigate the Government's Case
In the Declaration attached to his Brief in Support of Motion to Vacate, Martinez asserts that he asked Del Valle to hire a private investigator. Although Del Valle could have moved the Court to authorize the services of an investigator pursuant to 18 U.S.C. § 3006A(e), Martinez argues, Del Valle did not file such a motion. Martinez claims that Del Valle could have used an investigator to establish that Martinez was actually in Tennessee on two of the dates Calderon testified about and therefore, that Martinez could not have called Calderon or otherwise participated in the charged conspiracy. In his rebuttal Affidavit, Del Valle states that Martinez never asked for an investigator. Del Valle also asserts that Martinez never told him that he was anywhere else at a time that might have served as an alibi. Del Valle further observes that the telephone calls in question could have been made from anywhere in the country, and that, in any event, the calls did not represent the critical issue. The critical issue, asserts Del Valle, was Calderon's testimony that Calderon received the marijuana from Martinez, that Martinez was Calderon's boss, and that Martinez paid Calderon $1000.00 to hide the marijuana for him. In Del Valle's opinion, no alibi concerning Martinez's whereabouts at the time certain phone calls were made would trump Calderon's aforementioned testimony.
Pet'r's Br. in Support of Mot. Vacate, docket no. 62, Ex. 6 (Decl. of Benito Martinez), ¶¶ IX-X.
Id.
Id.
Answer to Ct.'s Order for Tr. Attorney to Show Cause Why He Should Not Be Held in Contempt of Ct., docket no. 88, at ¶ 17.
Id.
Id. at ¶ 18.
Id.
Id.
After independently reviewing the record and the pleadings in this cause, the Court finds that Martinez has failed to establish that Del Valle performed deficiently or that Martinez suffered prejudice as the result of Del Valle's alleged shortcomings. Whether or not Martinez was in Tennessee when certain telephone calls were made was irrelevant to the Government's case against his client. That is, evidence regarding Martinez's specific whereabout during the calls would not negate Calderon's testimony regarding Martinez's involvement in the conspiracy. Also, evidence that Martinez was physically located in Tennessee when the calls were made would not have necessarily shown that Martinez did not make the calls. As to failing to investigate the Government's witnesses, Martinez has not shown what such an investigation would have revealed and its value to Martinez's defense.
B. Del Valle Asked Martinez for $50,000 and Was Unprepared for Trial
Martinez contends that Del Valle told him that, if Martinez paid Del Valle $50,000, Del Valle would insure that Martinez was acquitted. Martinez alleges that, because he could not afford to pay Del Valle $50,000, Del Valle devoted more time and effort to another criminal case in which the defendant was able to pay Del Valle more money than Martinez could. Martinez also asserts that because Martinez could not pay Del Valle $50,000, Del Valle did not show Martinez a copy of the Presentence Investigation Report. Later in Martinez's Declaration, however, Martinez clarifies that he was unable to review the amended Presentence Report before sentencing, to determine whether or not it contained errors.
Pet'r's Br. in Support of Mot. Vacate, docket no. 62, Ex. 6 (Decl. of Benito Martinez), ¶ VI.
Id.
Id.
Id. at ¶ VIII.
Del Valle responds that:
Martinez is twice the damned liar he normally is when he says that I asked him for money. When Martinez insinuated that I wanted him to plead guilty because the Government of the United States was paying me to represent him[,] I responded that my advice to him would not change even if he were to retain me privately. When he asked me how much I would charge to represent him[,] I told him he didn't have enough money to hire me to put up with his nonsense. For the record, I never asked Martinez for money.
Answer to Ct.'s Order for Tr. Attorney to Show Cause Why He Should Not Be Held in Contempt of Ct., docket no. 88, at ¶ 14.
Answer to Ct.'s Order for Tr. Attorney to Show Cause Why He Should Not Be Held in Contempt of Ct., docket no. 88, at ¶ 14.
Del Valle also asserts that he gave Martinez a copy of every document that Del Valle received, because he realized from the start of his representation that Martinez was a contentious client.
Id. at ¶ 16.
As an initial matter, the Court notes that it had an opportunity at sentencing to observe Martinez and to assess his credibility. At that hearing, which the Court recalls very well, after listening closely to Martinez's statements and observing his demeanor, the Court assessed Martinez's general credibility as very low. Nothing in Martinez's present, patently ridiculous and self-serving allegations does anything to change the Court's initial credibility assessment. The Court likewise had an opportunity to assess Del Valle's credibility at Martinez's sentencing, as well as on the numerous times Del Valle has appeared before the Court over the years. Based on its extensive experience with Del Valle and the statements in his Affidavit, which carry the ring of truth, the Court credits Del Valle's version of events over Martinez's account. The Court accordingly finds that Del Valle did not ask Martinez for $50,000 and did not curtail his efforts on Martinez's behalf because Martinez would not pay him this sum. Martinez has therefore failed to establish that Del Valle performed deficiently in this regard. The Court further finds that Del Valle provided Martinez with a copy of the Presentence Investigation Report.
Although Martinez's failure to establish deficient performance makes it unnecessary for the Court to determine whether he has met the prejudice prong of Strickland, in an abundance of caution, the Court nevertheless considers the issue. It finds that Martinez has failed to carry his burden in this regard as well. That is, even if Martinez's allegations were true, Martinez has presented no persuasive evidence that Del Valle shortchanged Martinez's defense because Del Valle was appointed by the Court rather than privately retained by Martinez, or that Del Valle was unprepared for trial. The Court's independent review of the trial transcript moreover reveals no basis for such a finding. Indeed, the trial transcript leads to exactly the opposite conclusion, revealing that Del Valle vigorously and ably defended his client throughout the course of the trial.
Turning to Martinez's complaint that Del Valle did not provide Martinez with a copy of the amended Presentence Report, Martinez has not shown how he was adversely affected at sentencing by not seeing it. Inasmuch as Martinez objects to drug quantity calculations and the leader-organizer recommendation contained in the original and amended Presentence Report, Del Valle raised these issues at sentencing. Martinez has not come forward with any other alleged errors in the report and explained how they affected his sentencing.
C. Del Valle Never Came to See Martinez and Failed to Update Martinez and Martinez's Family Regarding the Status of the Case and Important Dates Relating to the Proceedings
This aspect of Martinez's ineffective-assistance claim can most charitably be described as frivolous. First, the Court observes that Martinez's Declaration is not internally consistent. Although Martinez initially asserts in his Declaration that Del Valle never came to see him, he later states that Del Valle visited him on at least two occasions, that is, once to convey the Government's plea offer and another time allegedly to ask Martinez for money. Second, Del Valle denies Martinez's allegations, asserting that he visited Martinez half a dozen times in person to discuss the case and took many collect telephone calls from his client. Del Valle also states that Martinez's sister would often call for court dates, apparently get the information confused, and pass erroneous information on to other family members. Based on the internal contradictions in Martinez's Declaration, the Court credits Del Valle's rendition of events over Martinez's. The Court accordingly finds that there is no factual basis for Martinez's claim that Del Valle performed deficiently by failing to visit Martinez or keep Martinez abreast of developments in the litigation. Moreover, even assuming that Martinez could show deficient performance, he cannot show prejudice because he has not demonstrated how his defense was prejudiced by his family not having correct information regarding his hearing dates.
Pet'r's Br. in Support of Mot. Vacate, docket no. 62, Ex. 6 (Decl. of Benito Martinez), ¶ III.
Id. at ¶¶ V-VI.
Answer to Ct.'s Order for Tr. Attorney to Show Cause Why He Should Not Be Held in Contempt of Ct., docket no. 88, at ¶ 3.
Id. at 15.
D. Del Valle Did Not Let Martinez Listen to Taped Telephone Conversations That Were Part of the Government's Case Against Martinez and Did Not Object to the Tapes's Admission into Evidence
Martinez contends that Del Valle was ineffective because he did not allow Martinez to listen to the tape recordings made by Calderon, which allegedly reflected telephone conversations Calderon engaged in with various members of the conspiracy, including Martinez. Martinez also contends that the Government did not lay a foundation for the admissibility of the tapes and that Del Valle performed deficiently because he did not object to the admission of the tapes on this basis. Given Del Valle's lack of objection to the tapes's admissibility, Martinez further argues, it was inconsistent of Del Valle to later assert that the voice on the tapes did not belong to Martinez. Del Valle responds that he provided transcripts of the tapes for Martinez well before trial began . Del Valle further states that Del Valle listened to the tapes and that afterward he informed Martinez that he had no doubt that the jury would recognize one of the peculiar sounding voices on the tapes as Martinez's if Martinez testified at trial.
Turning to the first aspect of Martinez's claim, the Court finds that he has failed to show how an attorney performs deficiently per se by letting a client read transcripts of the taped telephone conversations rather than having the client listen to those tapes, when it is clear to the attorney that at least one of the voices on the tape matches his client's distinctive voice. Martinez has also failed to show how he was prejudiced by not hearing the tape recordings until trial.
As to the remainder of Martinez's claim, the record shows that the Government moved to enter the tape recordings, otherwise known as Government's Exhibits 12-14, into evidence after Calderon testified about the making of the tapes. The record further reveals that Del Valle did not object to the Exhibits' admissibility, but asserted in his closing argument that there was no proof the voice on the tapes belonged to his client.
Trial Tr. at 60, 66.
Federal Rule of Evidence 901(a) requires the proponent of evidence to authenticate or identify the evidence before it may be admitted into the record: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims." Here, the Government laid a foundation as to the tapes' admissibility by calling witness Calderon, the maker of the tapes, to testify that he had made the tapes and that they had not been materially altered from the originals. Calderon's testimony was sufficient under Federal Rule of Evidence 901(b)(1) to show that the Exhibits 12-14 were what he claimed them to be, that is, tape recordings of telephone conversations. Because the Government laid a proper foundation for the tape recorded conversations, any objection to the tapes's admissibility by Del Valle would have been frivolous. Counsel does not perform deficiently by declining to raise a frivolous objection. Moreover, Martinez confuses questions of admissibility with disputes regarding the ultimate fact at issue ( i.e., whether Martinez's voice was actually on the tape). Here, it was not inconsistent for Del Valle to concede that the tapes were admissible under the Federal Rules of Evidence but to assert that the Government had not shown that any of the voices on the tape belonged to Martinez. E. Del Valle Failed to Seek Joinder of Martinez's Co-Conspirators Under Federal Rule of Criminal Procedure 8
Fed.R.Evid 901(a).
As previously noted, the Government named only Martinez and Jesus Romero in the Indictment. Martinez alleges that Del Valle performed deficiently because he did not move to compel the Government to join Riley, a co-conspirator, in the Indictment under Federal Rule of Criminal Procedure 8. Martinez also contends that Del Valle performed deficiently by not objecting when Riley refused to testify at Martinez's trial.
Federal Rule of Criminal Procedure 8 governs the joinder of offense or defendants in one indictment or information. Regarding the joinder of defendants, Rule 8(b) provides, in pertinent part, that the indictment:
may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.
Fed.R.Crim.P. 8(b) (emphasis added).
Fed.R.Crim.P. 8(b) (emphasis added).
As the plain text of the Rule 8 states, joinder of defendants in one indictment is permissible if the defendants in question are all alleged to have participated in the same series of acts or transactions that constitute an offense or offense. Thus, while the Government probably could have named Riley in the same Indictment as Martinez and Romero, Rule 8 did not require the Government to do so. There was thus no non-frivolous basis for Del Valle to file a motion under Rule 8, seeking to compel the Government to name Riley in the same Indictment, when Rule 8 did not require the Government to do so. Moreover, to the extent Martinez cites United States v. Cihak, 137 F.3d 252, 259 (5th Cir. 1998), for the proposition that "defendants who are indicted together, should generally be tried together," he overlooks the fact that Riley was not named in the same Indictment as Martinez. Cihak is therefore inapposite to the case at bar. As to Riley's refusal to testify, Martinez has failed to show that Del Valle had any nonfrivolous basis for an objection or that Riley could have actually been compelled to testify. Lastly, Martinez has failed to show prejudice. The fact that Riley did not testify weakened the Government's case and thus actually helped Martinez's defense.
United States v. Cihak, 137 F.3d 252, 259 (5th Cir. 1998).
F. Del Valle Did Not Object to the Single Charge of Conspiracy in the Indictment and Allowed the Government to Create a Variance at Trial by Alleging Multiple Conspiracies
As with all of Martinez's claims for relief, the Court has read the instant argument liberally, pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). Although the manner in which Martinez labels his claim suggests that he is asserting the existence of a variance between the Indictment and the Government's proof at trial, upon reviewing Martinez's associated argument, it is clear that Martinez is actually attempting to establish a violation of the Sixth Amendment's Confrontation Clause. The Court understands Martinez to contend that the Government used the hearsay testimony of an unreliable Government informant ( i.e., Calderon) to convict Martinez, without Martinez being able to confront and cross-examine his indicted and unindicted co-conspirators. Martinez also argues that, by taking the witness stand and admitting to the jury that he had pleaded guilty to related charges, but then refusing to testify further, Riley created the impression that Martinez was also guilty. Martinez, asserts that he did not have an opportunity to dispel this impression by cross-examining Riley. According to Martinez, matters were made worse when Calderon was subsequently allowed to testify regarding Riley's involvement in the offense. Martinez contends that Del Valle was ineffective for not objecting on this basis.
If that were actually Martinez's claim, it would be without merit. A review of the record shows that there was no variance between the conspiracy charged in the Indictment and the proof at trial. See United States v. DeVarona, 872 F.2d 114, 118 (5th Cir. 1989) (stating that a single conspiracy exists "if the evidence demonstrates that all of the alleged co-conspirators directed their efforts to accomplish a single goal or common purpose.").
After due consideration, the Court concludes that Martinez has not established a claim of constitutionally inadequate assistance in this regard. The Sixth Amendment Confrontation Clause provides that, "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Here, the trial record shows that all witnesses who actually testified against Martinez were subject to a rigorous cross-examination by Del Valle. Martinez was therefore not denied his right to confront the witnesses against him. Del Valle thus did not perform deficiently by failing to object on this basis. Martinez also was not prejudiced by Del Valle's decision not to object to Riley's failure to testify. As discussed previously, even if Riley's time on the stand arguably created some inference of Martinez's guilt, Martinez has not shown that prejudice ensued as a direct result of Del Valle's deficiencies, if any. There is no evidence that Del Valle had anything to do with Riley's refusal to testify. Moreover, as set forth earlier, Riley's failure to testify actually worked to Martinez's advantage.
G. Del Valle's Failure to Request a "False in One, False in All Jury Instruction"
Martinez contends that Del Valle was ineffective because he did not request a "false in one, false in all" jury instruction, where the defense impeached and discredited Calderon's testimony. However, a "false in one, false in all" jury instruction regarding Government informants is not required, where, as in this case, the district court gives the jury a general instruction on witness credibility. Because Judge Head did not abuse his discretion in omitting a "false in one, false in all" instruction regarding Calderon's testimony, there was accordingly no non-frivolous basis on which Del Valle could have objected. The Court finds that Martinez has therefore failed to show that Del Valle performed deficiently by declining to request a "false in one, false in all" jury instruction.
United States v. Payne, 940 F.2d 286, 292 (8th Cir. 1991); see Trial Tr. at 143-44 (jury charge).
H. Del Valle Did Not Request a Special Instruction After the Prosecutor Urged the Jury to Make an Example of Martinez, Based on the News They Saw in the Media
Martinez contends that Del Valle was ineffective because he did not object to and request a limiting instruction regarding the following portion of the Government's closing argument: "When you sit in you living room at night, and you watch the news, and you ask why don't they do something about drugs in our community, you are the they. This is where you have the opportunity to send a message to this man and his associates." In his Brief in Support of Motion to Vacate, however, Martinez concedes that Del Valle did, in fact, object to the Government's argument, but that the Court overruled his objection. There is thus no factual basis for Martinez's claim that Del Valle was ineffective for failing to object on this basis. Further, Del Valle could have obtained a limiting instruction only if the Court had sustained his objection. In light of these circumstances, the Court finds that Martinez has failed to establish a claim of constitutionally inadequate assistance of counsel.
Trial Tr. at 168.
Br. in Support of Mot. to Vacate, docket no. 62, at 22; see also Trial Tr. at 168. The Court finds that Martinez has not shown that Judge Head abused his discretion in overruling Del Valle's objection, as the Government's argument was nothing more than an appeal for law enforcement and not an attempt to inflame the jury. See United States v. Fields, 72 F.3rd 1200, 1208 (5th Cir. 1996) (stating that pleas for law enforcement, as a plea for the jury to act as the conscience of the community, are permissible as long as they are not intended to inflame).
J. Del Valle Did Not Present Martinez with a Written Plea Agreement
Martinez faults Del Valle for conveying a verbal plea offer from the Government and urging Martinez to accept or reject the offer without first showing Martinez an actual written agreement memorializing the offer's terms. In his Affidavit, Del Valle responds that he took a standard written plea agreement to Martinez soon after he was appointed to represent Martinez, but Martinez rejected it. Shortly before trial, Del Valle asserts, the Government offered what Del Valle considered a very good settlement offer, which included the withdrawal of the 21 U.S.C. § 851 statutory enhancement that the Government had filed against Martinez. This term alone, in Del Valles's opinion, was enough to warrant acceptance of the deal. However, the deal also included an agreement by the Government to not move for an upward adjustment for Martinez's role in the offense and a full three-level downward adjustment for acceptance of responsibility. Del Valle states that, on the eve of trial, the Government additionally agreed to stipulate to a substantially lower amount of drugs, meaning that the Government would not attempt to prove historical amounts against Martinez. The amount of drugs would be limited to the amount actually seized. Del Valle recalls that, on the weekend before trial, he repeatedly and emphatically urged Martinez to accept this extraordinarily generous plea agreement. Martinez, says, Del Valle, was unmoveable. Del Valle agrees that there was no written plea agreement at that point, but had Martinez agreed to the proposed terms, the agreement would have been written down.
Answer to Ct.'s Order for Tr. Attorney to Show Cause Why He Should Not Be Held in Contempt of Ct., docket no. 88, at ¶ 8.
Id.
Id.
Id.
Id.
Id.
Id. at ¶ 9, 11.
Id. at ¶ 11.
Id. at ¶ 13.
After due consideration, the Court concludes that Martinez has failed to demonstrate deficient performance by Del Valle. The Court finds that a defense attorney does not perform deficiently merely because he verbally informs his client of the Government's plea offer and gauges the client's interest in that agreement before having the Government's attorney memorialize the offer's terms in writing.
K. Del Valle's Failure to Raise an Apprendi Objection
Martinez contends that Del Valle should raised an Apprendi objection to any enhancement to his sentence pursuant to 21 U.S.C. § 851. The Court finds that Martinez has failed to show deficient performance. Under Apprendi, it is constitutionally permissible to use prior convictions to enhance a defendant's punishment. Since the § 851 enhancement to Martinez's sentence stemmed from his prior federal drug conviction, there was no Apprendi violation and any objection Del Valle might have raised under this theory would have been frivolous. Further, as Respondent correctly notes, any objection that Martinez wanted Del Valle to make to the enhancement provisions in 21 U.S.C. § 841 were precluded by Fifth Circuit Court of Appeals's holding in United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000). L. Del Valle Failed to Cross Examine Witnesses Effectively
See Booker, 542 U.S. at __, 125 S. Ct. at 756 (reaffirming the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), by holding that "[a]ny fact ( other than a prior conviction), which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.") (emphasis added).
See United States v. Doggett, 230 F.3d 160, 164 (5th Cir. 2000) (explaining that, when the Government seeks enhanced penalties based on the amount of drugs under either 28 U.S.C. § 841(b)(1)(A) or 841(b)(1)(B), Apprendi does not apply when the defendant's sentence does not exceed the statutory maximum sentence authorized by the jury's findings).
The Court finds that Martinez's allegations in this regard are conclusory, in that Martinez does not specifically identify the witnesses whom he believes Del Valle did not adequately cross-examine, nor does Martinez set forth the questions that Del Valle should have asked. Further, Martinez does not show how he was prejudiced. Moreover, the record in this cause shows that Del Valle aggressively cross-examined the Government's witnesses, especially Calderon, the Government's chief witness.
For the foregoing reasons, the Court concludes that Martinez has not established a claim of constitutionally ineffective assistance under Strickland, the applicable legal standard.
V. CERTIFICATE OF APPEALABILITY
To appeal the denial of a Motion to Vacate filed under 28 U.S.C. § 2255, the petitioner must obtain a Certificate of Appealability. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the scope of appellate review from the denial of habeas petition is limited to issue on which the CoA granted).
28 U.S.C.A. § 2253(c)(3) ; Crutcher, 301 F.3d at 658 n. 10; Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997); Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997).
A CoA to appeal the denial of a Motion to Vacate shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If the Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge the Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must satisfy two requirements. First, the petitioner must demonstrate that jurists of reason would debate whether the petition states a valid constitutional claim. Second, the petitioner must show that jurists of reason would debate whether the Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C.A. § 2253(c)(2); Miller-El, 537 U.S. at 327.
Miller-El, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Id.
Id.
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and the Parties' pleading, the Court concludes that jurists of reason would not debate whether Martinez has stated a valid claim or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding Martinez's claims for relief.
VI. CONCLUSION ORDER
For the reasons discussed above, the Court concludes that Petitioner Benito Martinez is not entitled to relief regarding the claims he raises in his Motion to Vacate pursuant to 28 U.S.C. § 2255. The Court further finds that Martinez is not entitled to a Certificate of Appealability. Accordingly, the Court enters the following orders:
1. Petitioner Benito Martinez's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 [Docket No. 61], filed on May 3, 2005, is DISMISSED WITH PREJUDICE.
2. Petitioner Benito Martinez is DENIED a Certificate of Appealability.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.